Blackmer v. Blackmer

272 P. 10, 84 Colo. 540, 1928 Colo. LEXIS 377

• Court: Supreme Court of Colorado
• Decided: November 12, 1928
• Docket: No. 12,194.
• Status: Published

Opinion

Mr. Justice Whitford

delivered the opinion of the court.

The question before us is upon a motion to dismiss the writ of error under rule 8. This rule provides that: “The party claiming error in the trial of any case must, unless otherwise ordered by the trial court, move that court for a new trial, and, without such order, only questions presented in such motion will be considered on review. ’ ’

The judgment order complained of was for temporary alimony, attorneys ’ fees, and court costs. The court below heard the testimony of the plaintiff, and of the defendant, as to the necessities of the plaintiff, and the ability of the husband to pay. It thus appears that the questions presented to the trial court were issues of fact. The issues of fact heard and determined by the trial court cannot be reviewed in this court, in the absence of a motion for a new trial, or an order dispensing therewith, in the record.

Under rule 8 the record is insufficient to authorize a review. Lapham v. Phillips, 81 Colo. 449, 255 Pac. 1100.

The motion to dismiss the writ of error must be granted, and it is so ordered.